Appeal by special leave from the Judgment and Order dated July 22, 1974 of the Madras High Court at Madras in Criminal Appeal No. 24 and Referred Trial No. 3 of 1974

Excerpt:.....was competent in view of section 417 (2) - section 417 (2) does not bar the jurisdiction of the state government to direct the public prosecutor to present an appeal even in cases investigated by the establishment - there was no limitation in the power of state government to direct institution of appeal with regard to any particular type of cases - the appeal filed in the name of the state therefore can be held as competent - appeal dismissed. - sections 16-a & 16(since repealed): [dr. arijit pasayat & asok kumar ganguly, jj] offence of food adulteration plea by accused that warrant procedure was adopted was raised for first time before supreme court - no prejudice shown held, plea not tenable. provision relating to trial by summary procedure is not mandatory. however,..........prosecution was launched against the accused on the complaint of the superintendent of police, delhi special police establishment, jabalpur, and case was registered against him under sections 182, 471 and 480, i.p.c. in due course a charge-sheet was submitted against the accused and he was tried under section 465/471 and section 420 ipc. according to the prosecution the accused was born on august 21, 1936 and he had not passed his b.sc. examination at all and after tendering the forged certificates procured the employment.6. the accused was tried by the special magistrate, first class, jabalpur, for offences under section 465 read with section 471 and under section 420 ipc. the trial court acquitted the accused under section 465 read with section 471 and convicted him under section.....

Judgment:

P.K. Goswami, J.

1. In this appeal by special leave the only point that arises for consideration is whether the appeal filed by the State of Madhya Pradesh, in the High Court against the order of acquittal of the appellant under Section 465 read with Section 471 of the Indian Penal Code was competent under the law.

2. The accused (appellant) secured an appointment of Senior Operator Trainee in the Bhilai Steel Project by submitting two forged certificates. The first certificate was regarding this passing the Bachelor of Science examination with Mathematics, Physics and Chemistry, and 2nd Division from the University of Sagar. The second document was an attested copy of his Matriculation certificate in proof of age where his date of birth was shown as August 21, 1941.

3. The minimum educational qualification for the post was that the candidate must be a Science Graduate of a recognised University with any two of the three subjects Mathematices, Physics and Chemistry and the age limit was prescribed between 18 to 23 years as on 1.10.1963.

4. The accused who registered himself as a Science Graduate in the Employment Exchange, Bhilai, was sponsored for the above mentioned post on January 28, 1964. He was ultimately selected for the post placing reliance on the aforesaid two certificates and he joined the appointment.

5. That, as it transpired, prosecution was launched against the accused on the complaint of the Superintendent of Police, Delhi Special Police Establishment, Jabalpur, and case was registered against him under Sections 182, 471 and 480, I.P.C. In due course a charge-sheet was submitted against the accused and he was tried under Section 465/471 and Section 420 IPC. According to the prosecution the accused was born on August 21, 1936 and he had not passed his B.Sc. examination at all and after tendering the forged certificates procured the employment.

6. The accused was tried by the special Magistrate, First Class, Jabalpur, for offences under Section 465 read with Section 471 and under Section 420 IPC. The trial Court acquitted the accused under Section 465 read with Section 471 and convicted him under Section 420 IPC and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 500/-. The learned Additional Sessions Judge on appeal maintained the conviction but reduced the sentence to six months' rigorous imprisonment maintaining the fine.

7. The State of Madhya Pradesh preferred an appeal to the High Court against the acquittal of the accused under Section 465 read with Section 471 IPC. The accused also preferred a revision application against his conviction under Section 420 IPC. Both the matters were beard together and by a common judgment the High Court dismissed the revision application of the accused and allowed the State's appeal and convicted the accused under Section 465 read with Section 471 and sentenced him to rigorous imprisonment for one year. Hence this appeal by Special Leave.

8. It is submitted on behalf of the appellant that the appeal to the High Court was not competent in view of the provisions of Section 417(2) of the Criminal Procedure Code.

9. It is admitted that this case is governed by the old Criminal Procedure Code, 1898. We may, therefore, at once read Section 417, Criminal Procedure Code, so far as it is relevant for our purpose:

417(1) Subject to the provisions of Sub-section (5), the State Government may, in any case, direct the public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment Constituted under Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order to acquittal.X X X X X

10. Section 417, Criminal Procedure Code, prior to the Amendment Act XXVI of 1955 provided for prosecution of appeals by the public prosecutor on the direction of the State Government. The 1955 Amendment introduced several changes and provided for appeals at the instance of the complainant as also on the direction of the Central Government in cases investigated by the Delhi Special Police Establishment. Further changes were introduced in the matter of appeals against acquittal under Section 378 of the CrPC, 1973, with which we are not concerned in this appeal in view of the repeal provisions under Section 484(1), Cr.P.C.

11. The Delhi Special Police Establishment (briefly the Establishment), a central police force, is constituted under the Delhi Special Police Establishment Act, 1946 (Act XXV of 1946) (briefly the Delhi Act). Under Section 2 of the Act, the Central Government may constitute a special police force, called the Delhi Special Police Establishment, for investigation of certain offences of class of offences as notified under Section 3 of the Delhi Act. Under Section 4 of the Act the Superintendent of the Delhi Special Police Establishment vests in the Central Government and administration of the Special Police Establishment vests in an officer appointed by the Central Government who exercises powers exercisable by at Inspector General of Police as the Central Government may specify. Under Section 5 the powers and the jurisdiction of the Establishment can be extended by the Central Government to other areas in a State although, not a. Union Territory. Once there is an extension of the powers and jurisdiction of the members of the Establishments, the members thereof while discharging such functions are deemed to be members of the Police forte of the area and are vested with the powers', functions and privileges and are subject to the liabilities of a police officer belonging to that force. The police officer also subject to the orders of the Central Government exercises the powers of the officer-in-charge of a police station in the extended area. Under Section 6 consent of the State Government is necessary to enable the officer of the Establishment to exercise powers and jurisdiction in any area in the State not being a Union Territory of rail way area.

12. Investigation under the Delhi Act is, therefore, a central investigation and the officers concerned are under the superintendence of the officer appointed by the central Government. The Superintendence of the Establishments is also under the Central Government. The Central Government, therefore, is concerned with the investigation of the cases by the Establishment and its ulti-1 mate result. It is in that background that in 1955 Section 417 was amended by adding-Sub-section (2) to the section to provide for appeal against acquittal in cases investigated by the Establishment also on the direction of the Central Government. In view of the provisions of the Delhi Act it was necessary, to introduce Sub-section (2) in Section 417 so that this Central agency, which is solely and intimately connected with the investigation of the specified offences may also approach the Central Government for direction to appeal in appropriate cases.

13. This, however, does not bar the jurisdiction of the State Government also to direct presentation of appeals when it is moved by the Establishment. The Establishment can move either the Central Government or the State Government. It will be, purely a matter of procedure whether it moves the State Government directly or through the Central Government or in a given case moves the Central Government alone. It will again be a mater of procedure when the Central Government decides to appeal it requests the State Government to do the needful through the public prosecutor appointed under the code.

14. The word 'also' in Sub-section (2) of Section 417 is very significant. This word seems not to bar the jurisdiction of the State Government to direct the public prosecutor to present an appeal even in cases investigated by the Establishment. Sub-section (1) of Section 417 is in general terms and would take in its purview all type's of cases since the expression used in that sub-section is 'in any case'. We do not see any limitation on the power of the State Government to direct institution of appeal with regard to any particular type of cases. Sub-section (1) of Section 417 being in general terms is as such of wider amplitude. Sub-section (2) advisedly uses the word 'also' when powers is given to the Central Government in addition to direct the public prosecutor to appeal.

15. In the present case we find from the documents produced before, us that the move was made by the Superintendent, Delhi Special Police Establishment, by requesting the Secretary, Law Department of the Government of Madhya Pradesh and the decision was taken by the State Government as it appears from the letter of the Under Secretary dated January 28, 1969, to the Advocate General Madhya Pradesh. The appeal was thereafter filed in the name of the State of Madhya Pradesh No objection, therefore, can be taken about the competency of the appeal being filed by the State of Madhya Pradesh in this case.

16. As a matter of procedure will be even permissible for the appeal against acquittal to be filed by the public prosecutor under the direction of the, State Government or the Central Government without impleading either as a party

17. The objection of the appellants is therefore; devoid of substance. We may mention that no such objection was even taken in the High Court. In the result the appeal fails and is dismissed.